Brian Stanley Fisher v Channel Seven Sydney Pty Ltd

The Special Verdict 9The jury found the following two imputations to be true: (1)The plaintiff drove his bus which was carrying school children in a dangerous manner; (2)The plaintiff drove a bus containing 40 school children without wearing a seat belt. 10The jury determined that the program conveyed the following untrue imputations, which it found to be defamatory of the plaintiff: (1)The plaintiff wrongly used his mobile phone while driving his bus containing 40 school children on a notorious stretch of outback road; (2)The plaintiff is a menace to the safety of others; (3)The plaintiff unjustifiably banned school children from travelling on his bus thereby depriving them of the opportunity to attend school; (4)The plaintiff stranded children who were passengers on his bus. 11The jury found the alleged imputation (7), that "the plaintiff unjustifiably fights and bullies school children on his bus" was not conveyed in the program. 12As earlier stated, the defendants failed to establish the truth of the contextual imputation that the "plaintiff's conduct as a bus driver is so poor that he is not a fit and proper person to be allowed to drive a bus carrying school children". 13Further, the jury determined that none of the pleaded and untrue imputations, nor similar imputations, were expressed in the broadcast as comment or opinion.

Plaintiff and these Proceedings 14The plaintiff is 46 years old, and lived in Taree with his wife (now separated) and two children. The plaintiff was educated at Cowra High School and left school at 15 years of age to work as a track manager on the Sydney-Melbourne rail corridor until he was made redundant in 2003. 15Since 2003, the plaintiff and his wife, Elizabeth Fisher, have operated a commercial school bus service trading as "Fisher Bus", under an authority granted by the Department of Transport for New South Wales, now known as Transport for New South Wales. 16Fisher Bus operated five bus services in the Cowra/Candida region in New South Wales. 17In 2008, Fisher Bus bought the Gloucester to Taree bus service, which transported 35 to 40 school children to and from their schools. The journey takes approximately 1 hour and 15 minutes each way. 18The plaintiff has driven heavy vehicles for 26 years without accident or incident and describes himself as a safe and responsible driver (Transcript, 40). 19Fisher Bus were subject to various guidelines and policies issued by Transport for New South Wales, including the Guidelines for Managing School Student Behaviour on Buses, July 2006 (Exhibit 1, tab 2) and Policy on the Use of Hand-held Mobile Phones and other Unacceptable Behaviour by Drivers (Exhibit 1, tab 3). 20In the plaintiff's evidence, he stated that he was unaware the Ministry of Transport had issued a written booklet dealing with the guidelines, and drew a distinction between the Ministry of Transport Policy, on the one hand, and Guidelines for Managing School Student Behaviour, on the other (Transcript, 131). 21The plaintiff gave evidence to the Court relating to certain school children's "disruptive and disrespectful behaviour", namely Fletcher Best, Curtlee and Logan Beattie, Kieran Burley, Alexander Broadley and Anna Lewis. 22The plaintiff described their behaviour to the Court. The children would swear, damage and vandalise the seats and the bus, throw rubbish and objects out the window, spray high concentrations of deodorant and make inappropriate sexual remarks to female passengers (Transcript, 43-46). One or more of them acted in a manner that was deliberately defiant: opening windows (or closing them) when asked not to do so; "mooning" persons outside the bus, and like behaviour. 23Understandably, this behaviour was not tolerated by the plaintiff and his wife, and complaints were made to their parents and to Transport for New South Wales. In turn, the school children, their parents and Channel 7 led a "campaign" against the plaintiff and Fisher Bus. 24During the hearing, the defendants relied upon a number of incidents involving the plaintiff's conduct and the school children's behaviour, to prove that the allegations published by Today Tonight were true. This evidence is summarised below.

Impact of the Program and the Plaintiff's Reputation 25The plaintiff gave evidence about his feelings about the program and the impact and damage it has had on his family, reputation, his position and standing in the community, marriage and business. 26The plaintiff said the program made him feel upset and outraged, and turned "his whole life upside down". As a result, the plaintiff has become "an outcast and stopped getting charter work with the school" (Transcript, 66 & 54). 27The program was broadcast on 6 June 2011 throughout the States and the Australia Capital Territory. The plaintiff did not see the broadcast (Transcript, 53). The plaintiff was informed by his friend, John Langfield, later that day or the next day (Transcript, 53). The plaintiff then accessed the publication on the internet on Today Tonight's website. 28The plaintiff gave evidence in relation to the effect and impact the publication had on others. After the broadcast, a number of the plaintiff's family members called him to enquire whether the publication was true and it "caused doubt in their minds" about the plaintiff (Transcript, 54 & 63). Contact was also made by the plaintiff's friends and he was shunned by a number of others.

Summary of Evidence 29In this case, the truth of the imputations broadcast by Channel 7 were primarily based on ten separate, however interrelated, incidents, relating to the Gloucester to Taree bus service. 30The imputations that arise from the publication amount to serious allegations of misconduct on the plaintiff's part. It is necessary to recite the factual basis for determining the issues and the principles to be applied. 31Throughout the proceedings, there were a number of inconsistencies in the plaintiff's evidence on matters of significance: for example, the number of times the plaintiff had used his mobile phone while the bus was in motion; the letter written to the Transport Department in response to the Peter Lewis' arm incident; and the handwritten white texta-markings on the tachometer. 32On the basis of the factual analysis that follows presently, I only partially accept the evidence of the plaintiff and find that in some respects the plaintiff gave a version of events that was inaccurate or untruthful. The plaintiff often avoided questions or refused to answer directly. He dissembled and was mendacious. Nevertheless, he was defamed and is, subject to issues following, entitled to damages.

The plaintiff wrongful used his mobile phone while driving his bus containing 40 school children on a notorious stretch of outback road 33The plaintiff initially asserted that he never took a phone call while the bus was in motion and that when he made or received calls, he would pull the bus over and put on the park brake (Transcript, 59 & 248). 34During the plaintiff's evidence in chief, he acknowledged that there might have been one occasion, possibly on a rainy day, when he used his mobile phone while the bus was in motion (Transcript, 57). Afterwards, in cross-examination, the plaintiff agreed that there had been possibly two occasions when he drove the Gloucester to Taree bus service while using a mobile phone (Transcript, 76). 35This evidence is inconsistent with a letter written by the plaintiff, to the Transport Department, in 2011. The letter states: "On three occasions where parents attempt contact the driver, the driver recognised the parents' details that came up on the screen of his phone, and concerned for their welfare and unable to stop the bus, fielded their calls" (Transcript, 193-194). 36The plaintiff acknowledged that he was aware that using a mobile phone while driving was illegal, but that it was not dangerous (Transcript, 191). The plaintiff suggested that it was a politically correct thing to say it was dangerous to drive a school bus whilst on a mobile phone (Transcript, 188). 37The plaintiff received a verbal warning from the Gloucester Police on October 2011 and the Transport Department on 15 November 2010 in relation to using a mobile phone while the school bus was in motion. The plaintiff gave evidence that after 15 November 2010, he categorically did not use the mobile phone while the bus was moving after that morning (Transcript, 349). Another student passenger on the bus, Anna Lewis, gave evidence in the proceedings and said that she observed the plaintiff using his mobile phone while the bus was in motion "three to four times" (between period of time of February to June 2011). This evidence was not the subject of cross-examination. I accept Anna Lewis' evidence. 38The defendants tendered a summary and schedule of the plaintiff's telephone records made or received after 15 November 2010 (Exhibit 4). This schedule was used in conjunction with the bus timetable (Annual Review Survey Assessment for Route N2339 Exhibit 1, 8). 39The schedule describes 23 telephone calls and identifies the date and time; location of bus; outgoing and incoming telephone calls; duration and driver logs. 40The schedule was tendered to demonstrate that the plaintiff used his mobile phone while travelling on Bucketts Way, a so-called "notorious stretch of outback" [road]. The schedule showed, for example, on 22 March 2011, the plaintiff drove the bus from Taree to Gloucester and received an incoming call at 4.38pm before Mereweather Lane/Bucketts Way and also made an outgoing call at 4.45pm just after Waukivory Road/Bucketts Way. The plaintiff took a further incoming call at 4.49pm before Ravenshaw Street/Phillip Street in Gloucester. 41During those 11 minutes, I infer that the plaintiff failed to stop the bus and activate the park brake for each telephone call. Nor do I consider it likely given the probable location of the bus and the fact the bus completed the route that day, that the bus was stationary for the entire 11 minutes. 42I find, consistent with earlier conduct in relation to the mobile phone, together with the times the plaintiff made or received calls and where the bus, driven by the plaintiff was probably located, that it is likely the plaintiff made a number of calls, as detailed on the schedule, while the bus was in motion. However, I accept that the phone calls were neither made nor received on the Bucketts Way. 43I have earlier stated the terms of the imputation found by the jury. There is incontrovertible film evidence of the plaintiff using his phone whilst the bus was in motion. Part of that evidence has Mr Fisher holding his phone with his right hand to his left ear, while using his left hand to change gears and his elbow to steer the bus. The jury must have found that the plaintiff did use his mobile phone while the bus was in motion, however, it must not have been satisfied that the phone use was on a notorious stretch of outback road. 44The broadcast published another film taken by one of the school children on the bus, showing the plaintiff speaking on his mobile phone while in the driver's seat. The recording had the visual effect of giving the viewer the impression that the bus was in motion. This was achieved, either deliberately or otherwise, by moving the camera vertically (up and down) while filming. This was inaccurate and the bus was stationary at the time.

The plaintiff unjustifiably banned school children from travelling on his bus thereby depriving them of the opportunity to attend school 45The Today Tonight segment was recorded when the school children were suspended from Fisher Bus. The broadcast showed Trish Beattie and her two children, Logan and Curtlee, and Mrs Best and her son Fletcher Best. The children were in their school uniforms. 46The plaintiff said the notices of suspension were given in accordance with the Transport Government Guidelines, and were not effective until the recipient received the notice in writing (with the right of review). Further, the suspension notices only related to travel on Fisher Bus. Therefore, other alternative transport was available to the school children (Transcript, 52). As described below, Fisher Bus can issue a suspension notice after two written warnings have been given. 47The plaintiff said Fisher Bus published its own guidelines and/or policies dealing with such issues, including the Behaviour Management Policy, and this is set out as follows (Exhibit C): "This policy is to ensure the safe and efficient running of bus services operated by Fisher Bus Cowra and the safety of all passengers and staff. Students who behave in an unacceptable manner will be subject to the following discipline: For Category 1 offences [Unacceptable Behaviour]: students will be given 2 written warnings, on the third offence the students right to use the service will be removed for a period of 4 consecutive days once the operator is satisfied that written notification has been given to the parents and school. For Category 2 offences [Dangerous Behaviour]: students will be given 1 written warning, on the second offence the students right to use the service will be removed for a period of 8 consecutive days once the operator is satisfied that written notification has been given to the parents and school. For Category 3 offences [Highly dangerous or Life Threatening Behaviour]: no warnings will be given. Students will be suspended from using the service for 14 consecutive days once the operator is satisfied that written notification has been given to the parents and school." 48On 23 May 2011, Fisher Bus issued a number of Unacceptable Behaviour Notification Forms entitled "various" and "numerous" to students relating to opening and closing windows in the morning and afternoon. 49On or about 31 May 2011, Fisher Bus issued six Suspension of Travel Pass notices suspending the following school children from travelling on the Gloucester-Taree service, effective 6 June 2011: Fletcher Best (four weeks); Logan Beattie (two weeks); Curtlee Beattie (1 week); Alexander Earle Broadley (1 week); Kieran Burley (two weeks); and Elliot Scifleet. 50Contrary to Fisher Bus' policy, Curtlee Beattie had no prior warnings, Logan Beattie had been issued with one warning from 16 to 20 May 2011, and Kieran Burley had also been issued with one warning on 20 May 2011. Curtlee Beattie, Logan Beattie, Alexander Earl Broadley and Kieran Burley appealed their suspensions, which were overturned by the Transport Department. Fletcher Best's suspension was, also on appeal, reduced to 2 weeks.

The plaintiff drove a bus containing 40 school children without wearing a seatbelt 51During the course of the proceedings, the plaintiff stated that he wore a seatbelt while driving the school bus, except for the period between October and November 2010 when he was not wearing it for months because it was not in proper working order and needed repair (Transcript, 58, 59 & 263). This defect was found during a heavy vehicle inspection. Presumably, therefore, it had been "broken" before the inspection. 52When Exhibit 5 was shown to the plaintiff, being film in which the plaintiff is seen not wearing a seatbelt on 9 August 2010 (Transcript, 258-259), the plaintiff was not prepared to adjust his evidence of timing and continued to maintain his position, including denying that the failure to wear a seatbelt was dangerous. 53The plaintiff denied it was a bad example, dangerous or endangered the children's safety not to wear a seatbelt if it were broken (Transcript, 261-263). This is contrary to the plaintiff's affidavit of 14 January 2014, where he stated, in relation to the failure to wear a seatbelt: "I acknowledge there are three components that have merit. One is compliance with the rules, law and customs, the other is about setting an example to the children, and the third is my own personal safety in an accident." 54The plaintiff's counsel admitted, in his address, the truth of this allegation and it was found to be true by the jury. It does not, therefore, form a basis for the assessment of damage, but it is relevant to the plaintiff's credit.

The plaintiff drove his bus which was carrying school children in a dangerous manner 55There were a number of particulars to the truth of this imputation upon which the defendants relied. The jury found the imputation to be true. The details are relevant also to credit. 56The plaintiff gave evidence that the speedometer was not working for a couple of weeks in May 2011, and used the tachometer as a substitute to calculate speed relative to the revolutions per minute (RPMS) (Transcript, 269). 57The plaintiff made white texta-markings in "consultation with the mechanics" on the tachometer while they repaired the bus (Transcript, 268). The plaintiff when pressed in evidence, identified Mr Nathan Cooper from All Vehicle Services, Taree as Fisher Bus' mechanic. However, when Mr Cooper gave evidence, the witness denied that he discussed the speedometer and/or where to make the appropriate markings on the tachometer with the plaintiff (Transcript, 484). I accept Nathan Cooper's evidence. 58The defendants' allege that on another occasion the plaintiff drove the bus with the bus door open in a rural area in October 2010. The plaintiff denied it was dangerous to drive in this manner (Transcript, 265).

The plaintiff stranded children who were passengers on his bus 59The plaintiff gave evidence that he left the bus unattended "for less than a minute" to buy the newspaper (Transcript, 60). On a different occasion, the plaintiff left the bus unattended to go to the bathroom at Krambach (Transcript, 60). The Passenger Transport Regulation 2007 prohibits a driver from leaving a bus without reasonable cause. 60On or about 30 May 2010, Mr Kieran Burley was ordered off Fisher Bus after he mooned or bared his backside at another bus. The plaintiff stated that this had occurred five times previously (Transcript, 270). Mr Burley was directed off the bus at Manning Valley Anglican College (not his own school), where the plaintiff told Mr Burley he would call the police, and Mr Burley absconded (approximately 75 kilometres from his home in Gloucester). The plaintiff did not call Mr Burley's parents as he did not have their number, but says he asked a duty teacher, Neil Dawes, to contact his parents.

The plaintiff's conduct as a bus driver is so poor that he is not a fit and proper person to be allowed to drive a bus carrying school children 61In early 2011, Mr Harrison Broadley had been sick on the bus in the morning on the way to school. According to Mr Logan Beattie's evidence, the plaintiff instructed Harrison Broadley to clean up the vomit (Transcript, 438). However, the plaintiff denied asking Mr Harrison Broadley, but stated that since he was "indisposed and couldn't pull up" he asked the older children to clean up the vomit. 62The plaintiff did not stop the bus and continued on the freeway to Taree. The school children were not wearing seatbelts (Transcript, 332-338). The plaintiff disagreed it was dangerous as he was driving "slowly" and the bus was nearing the exit of the freeway (Transcript, 335). The plaintiff did not immediately or expeditiously, inform his wife that there had been a sick child on the bus and his wife, after learning of the incident, tried to contact the parents later in the evening (Transcript, 337). 63On or about 25 August 2010, Peter Lewis repeatedly opened a window on the bus, after being told to close the window by the plaintiff. The plaintiff told Peter Lewis "if you do that one more time, I will break your arm off" (Transcript, 103). When the bus arrived in Gloucester and Peter Lewis exited the bus, the plaintiff threw a "handful of torn up paper and paper aeroplanes" at him (Transcript, 104). The plaintiff did not speak to Peter Lewis' mother in relation to this incident. 64Mr Peter Lewis' mother made a complaint to the Transport Department. The plaintiff wrote a letter in response to the complaint, dated 7 September 2011, and is as follows: "...as for Mrs Lewis' claims that I could bloody do it, it is false. To suggest that I would tell a child I would break his arm and I had a right to do so, is absurd." (Exhibit 1, 5, 3). 65During the plaintiff's cross-examination, the plaintiff defended the accuracy of his letter to the Transport Department until finally, the plaintiff agreed it was only partially true (Transcript, 121). This incident is not relevant to damages and only goes to credit.

Consideration and Conclusion 66The tort of defamation provides a remedy for damage to reputation. Section 34 of the Defamation Act 2005 (NSW) provides that a court, in determining the amount of damages to be awarded in any defamation proceedings is to ensure that "there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded". The maximum amount of damages, not including aggravated damages, which can be awarded is $366,000.00. 67The High Court in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 has described the purpose of an award of damages for defamation to serve three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication; reparation for the harm done to the plaintiff's personal and (if relevant) business reputation; and vindication of the plaintiff's reputation: Carson at 60. 68Generally, a plaintiff is entitled to recover damages relating to injury to reputation and injury to feelings: see Carson v John Fairfax & Sons Ltd at 60 per Mason CJ, Deane, Dawson and Gaudron JJ; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at [60]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1315]. In the current case, the Court must take into account the degree of distress and hurt and the harm done to the plaintiff's personal and business reputation in the assessment of damages. 69As discussed by me, in Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702, the plaintiff is entitled to have his reputation vindicated. However, vindication is not a separate head of general damages. Rather, vindication is a function of the award of damages: see also Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 at [159] per Adamson J, citing John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 142; Cassell & Co Ltd v Broome [1972] AC 1027 at 1071. 70As earlier stated, the award of damages in defamation proceedings is intended to be a means by which the plaintiff can redress the defamation and obtain a money amount for the hurt and distress suffered as a consequence of the defamation. During the course of the proceedings, counsel for the plaintiff sought to suggest that the defamatory broadcast caused the plaintiff's marriage breakdown and caused the plaintiff to lose his charter business and bus operation licence. 71The basis upon which that submission was agitated was not for the purpose of obtaining special damage, but, rather, for the purpose of highlighting the hurt and distress suffered by the plaintiff as a consequence of the defamatory publication. Because of the unusual nature of this heightened hurt and distress, I allowed material to be adduced relating solely to the question as to whether the publication by the defendants in these proceedings caused the marriage breakdown and caused the loss of licence. 72Ordinarily, as has been made clear in interlocutory judgment relating to the admission of the material to which I refer in the immediately preceding paragraph, evidence of other publications of the same defamatory imputations is not admissible or relevant in defamation proceedings: see Brian Stanley Fisher v Channel Seven Sydney Pty Ltd (No 2) [2014] NSWSC 1593; Associated Newspaper v Dingle [1964] AC 371; Chappell v Mirror Newspapers Ltd NSWCA, 14 June 1984, unreported; Carson v John Fairfax & Son Ltd [1993] HCA 31; (1993) 178 CLR 44. 73Damages are assessed, in relation to any particular defamatory publication, on the effect of that particular publication. A defendant is not able to mitigate damage by adducing evidence of other publications in or to the same effect. However, the existence of other publications to the same effect is relevant to the question as to whether this particular impugned publication caused the marriage breakdown and caused the loss of the business, upon which the plaintiff relies for additional distress. 74I do not take into account any other publication of similar defamatory material in assessing the damages in this case. However, I am able to take account of other publications in determining whether the publication by the defendants in these proceedings was the cause of the marriage breakdown or the loss of the bus operating licence. 75Ultimately, I do not consider that the defamatory publication was the cause of the marriage breakdown. Nor do I consider it was the cause of the loss of the bus operating licence. That conclusion does not depend upon the existence of other defamatory material in or to the same effect as the broadcast impugned in these proceedings. 76The breakdown of a marriage is a complicated issue, which depends far more on the emotional state of the participants in the marriage and the relationship between them than it does on outside factors such as the publication of defamatory material. Mrs Fisher, who gave evidence in these proceedings and was intimately concerned in the running of the bus company, knew most of the circumstances applicable to these allegations and, in relation to some of them, was intimately concerned with them. 77I do not accept that the publication of the defamatory material was a substantial cause or operating factor in the marriage breakdown. It may be that some of the factors leading to the breakdown of the marriage were similar to the factors leading to communication issues between the plaintiff and the children on the bus and other aspects. But that is a fundamentally different proposition to the submission that the publication by the defendants in these proceedings led to, or was a substantial cause of, the breakdown in the plaintiff's marriage. 78In relation to the bus operating licence, as has been made clear in evidence and has been noted previously in these reasons for judgment, the relevant regulatory authority conducted an inquiry into the circumstances of the plaintiff's alleged misconduct. In relation to suspensions of children, it altered some of those suspensions and rescinded others. In relation to allegations of misconduct, such that the plaintiff ought not have his bus operating licence continue, the regulatory authority conducted the inquiry and came to its own decision. 79The allegations made to the regulatory authority caused it to suspend the plaintiff's licence at a point in time prior to the publication of the defamatory broadcast. If the broadcast were never to have occurred, there still would have been an inquiry. Nothing has been put in these proceedings to suggest that the outcome of that inquiry would have been any different had there not been a publication of the broadcast by the defendants in these proceedings. 80Again, I do not consider that the defamatory broadcast was a cause, substantial cause or otherwise a contributing factor to the loss of licence. 81As a consequence of the findings in relation to the cause of the marriage breakdown and the loss of licence, it is unnecessary, even for the limited purpose for which the material was admitted, to take account of the existence of other publications containing imputations to the same or similar effect. 82Further to the foregoing, the plaintiff received a letter from the Department of Transport on the morning of 6 June 2011, informing him of his bus driver licence suspension. There was no evidence adduced in the proceedings that the defamatory broadcast was the cause of his marriage breakdown. 83However, the plaintiff has suffered significant hurt and distress and must be compensated accordingly. I regard the following matters as being particularly relevant to the assessment. 84An analysis of the imputations held to be defamatory and untrue, compared with the uncontroverted evidence and the imputations that were true (or any true contextual imputation conveyed), results in the following conclusions as to the imputations that were made. 85First, the plaintiff used his mobile phone while driving his bus, but did not do so on a notorious stretch of outback road. 86Secondly, the plaintiff was alleged, by the defendants, to be a menace to the safety of others, which was untrue, but, it was true that the plaintiff drove his bus, carrying school children, in a dangerous manner. 87Thirdly, the plaintiff drove his bus without wearing a seatbelt, as alleged in the broadcast. 88Fourthly, the plaintiff did not unjustifiably ban school children from travelling on his bus, depriving them of the opportunity to attend school, as alleged by the defendants. 89Fifthly, the plaintiff did not strand children who were passengers on his bus, notwithstanding the allegation of the defendants. 90Lastly, notwithstanding the foregoing, and despite the allegation made in the broadcast by the defendants, the plaintiff did not conduct himself so poorly that he was not a fit and proper person to be allowed to drive a bus carrying school children. 91The defamatory imputations that arise from the Today Tonight broadcast, the effect of which are set out in the immediately preceding paragraphs, amount to serious allegations of misconduct on the plaintiff's part and are significant. The allegation that the plaintiff is a "menace to the safety of others" is particularly grave and capable of causing substantial damage to the plaintiff's reputation. Furthermore, as stated above, a significant award is warranted. 92Next, it should be noted that the plaintiff's good reputation is presumed: see Saffron v John Fairfax Publications Pty Ltd [2004] NSWCA 254. The plaintiff is not required to prove actual damage to his reputation. Once a finding of liability is made, some damage is presumed: see Ratcliffe v Evans [1892] 2 QB 524 at 528-30; Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 216. 93As articulated by McColl JA (Spigelman CJ and Beazley JA agreeing) in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232: "[271] When considering the issue of a rational relationship between the relevant harm and the amount of damages (s 46A) it must be recalled that a person's reputation is accorded high value. '[M]urdering a man's reputation by a scandalous libel may be compared to murdering his person': Webb v Blach (1928) 41 CLR 331 at 364; [1928] HCA 50 per Isaacs J. As Mahoney ACJ (Handley JA concurring) said (at 193) in Crampton v Nugawela (1996) 41 NSWLR 176 '[in] some cases, a person's reputation is, in a relevant sense, his whole life'." 94Further, the extent of publication is another factor in assessing the plaintiff's harm and injury to reputation: John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 141-2; John v Mirror Group Newspapers Ltd [1996] 2 All ER 35 at 48. 95The Court may take into account the grapevine effect, which describes the extent of likely republication of the imputations by discussion: Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at [89]; Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 at [82]. In this case, the grapevine effect is significant. 96The expression the "grapevine effect" was articulated by Lord Aitkin in Ley v Hamilton (1935) 153 LT 384 and said: "It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation." 97The plaintiff gave evidence that the publication was on the internet for many months (Transcript, 53) and that he received 20 to 30 telephone calls from people immediately after the broadcast (Transcript 62). The broadcast, as has been stated, was a prime time national commercial television broadcast across Australia (except in the Northern Territory). The grapevine effect, over and above that direct effect, was significant. 98In my view, the evidence demonstrated that the broadcast may be considered to have been published to the world at large, and the plaintiff is entitled to be compensated for this: Crampton v Nugawela (1996) 41 NSWLR 176.

Mitigation of Damages and Aggravated Damages 99The defendants' counsel submits that the defendants are entitled to rely upon mitigation of damages arising from any evidence before the Court that was primarily directed to a plea of justification or fair comment and proved to be true: see Pamplin v Express Newspaper Ltd (No 2) [1988] 1 WLR 116; Atkinson v Fitzwalter [1987] 1 WLR 201; Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90; (2004) 86 NSWLR 96. 100On the other hand, the plaintiff claims aggravated damages for the following, relying on Nicholas J in Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182: (i)The plaintiff's knowledge of falsity of the imputations; (ii)The defendants' conduct up to and including the trial; (iii)The defendants' failure to apologise; (iv)The defendants' conduct in editing the programme unfairly. 101Compensatory damages will ordinarily include a component for the hurt and distress suffered by the plaintiff for the continuing publication. It is important to note, even though the defendants maintained a defence of justification and contextual truth prior to, and during, the proceedings, and only two imputations were proved to be true, this cannot be held to aggravate the harm unless it is shown, in the circumstances, it was improper, unjustifiable or not bona fide: see David Syme & Co Ltd v Mather [1977] VR 516. 102The known falsity of the imputations entitles an award of aggravated compensatory damages: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58. However, the plaintiff knew or understood the truth in some of the imputations. The plaintiff had knowledge of his mobile phone use, not wearing his seatbelt, and leaving the bus to buy a newspaper and to use the bathroom while children were in the bus. 103Further, the plaintiff's Statement of Claim pleads that the material was published on the internet, and the material was accessible on the internet for approximately 6 months, which exacerbates the damage because of the continuing availability of the defamatory material. 104A failure to apologise is not a matter of aggravation, but a factor to be taken into account when considering the plaintiff's hurt by keeping alive the effect of the publication: see Haertsch. The plaintiff did not request or demand an apology from the defendants. 105As I understand it, after the defendants received the plaintiff's Statement of Claim, the defendants denied that the publication conveyed the imputations, were defamatory and asserted that the publication was based on truth. As the plaintiff did not establish that the failure to apologise was improper, unjustifiable or lacking in bona bides, the plaintiff's claim on this ground is rejected: see Clark v Ainsworth (1996) 40 NSWLR 463. 106In this case, I will not award aggravated damages. Even though some particulars (and two imputations) were proved to be true, and are taken into account by dealing with the effective allegation, the damage to the plaintiff was significant and, in the sense used by McHugh JA in John Fairfax & Sons v Kelly (1987) 8 NSWLR 131, continuing. The damages will not be at or near the cap, but will be sufficient to compensate fully and to vindicate without the need for aggravated damages. 107Because I have dealt with the nett imputations (see [84] to [90] infra), I do not need to allow further for any mitigation.

Interest 108Under s 100 of the Civil Procedure Act 2005, interest on the judgment amount may be awarded for the period up to judgment. In MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657, the "usual" interest rate was described as 4%, but that was at a time of universally low interest rates. 109Generally, in defamation cases, the appropriate interest rate is often thought to be half of the interest rate applicable in other areas of law: see John Fairfax & Sons Ltd v Kelly; McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270. The pre-judgment interest is payable from the date of publication to trial. 110As discussed by me in McGaw, it is important when determining the interest rate not to apply a formula mathematically without assessing the appropriateness of the interest rate based on that which is fair and proper. Current prescribed interest rates under the Uniform Civil Procedure Rules 2005 are 6.5%. The interest rates have varied since the date of the defamation from 8.75% through to 6.5%. I will, on a preliminary basis, assess the rate of pre-judgment interest to be paid for the whole of the period at 3.75%.

Order (1)Judgment for the plaintiff; (2)The defendants shall pay the plaintiff damages in the sum of $125,000; (3)The defendants shall pay, in addition, interest on the above amount pursuant to s 100 of the Civil Procedure Act 2005, at the rate of 3.75% from 6 June 2011 until the date of judgment; (4)The defendants shall pay the plaintiff's costs of and incidental to the proceedings; (5)Liberty to apply to all parties on any special or different order as to costs or interest within 14 days from the date hereof; (6)The plaintiff shall file and serve a draft Minute of Order within 21 days of the date hereof.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2014